Hadgkiss v Aldin & Ors - Perth to Mandurah Railway Project

WA , Backgrounder

Release date: 20 December 2007

On 20 December 2007, the Federal Court at Perth ordered 91 respondents in the Hadgkiss v Aldin & Ors (Perth to Mandurah Railway Project) proceeding to pay penalties for taking unlawful industrial action on the Perth to Mandurah Railway Project.
A proportion of the penalties were suspended on the condition that the full amount will be activated if the employees contravene the legislation within the next six months.
Federal Justice Gilmour ordered 64 employees to pay penalties of $10,000 each, with $6750 suspended for six months. These employees admitted to engaging in unlawful industrial action between 24 February and 3 March 2006 and beaching an order of the Australian Industrial Relations Commission (AIRC).
Three employees who admitted to the above breaches were ordered to pay $8400, of which $5600 is suspended for six months.
Twenty employees were ordered to pay penalties of $9000 each, of which $6000 is suspended for six months. These employees admitted to engaging in unlawful industrial
action between 24 February and 3 March 2006.
Four employees failed to file an appearance or defence. The penalty for two of these employees was $10,000, of which $6750 is suspended. The penalty for the other two employees was $9000 of which $6000 is suspended.
The penalties will be paid from the ‘Mandurah Dispute Fighting Fund’.

Penalty hearing for 91 respondents

On 5 November 2007, the Federal Court considered submissions on penalty for 87 employees.
Justice Gilmour was provided with statements of agreed facts that set out the details of the unlawful conduct. It disclosed that 87 employees admitted taking unlawful industrial action contrary to s38 of the Building and Construction Industry Improvement Act 2005 (BCII Act). Sixty-seven of these employees also admitted breaching an order of the Australian Industrial Relations Commission (AIRC) contrary to the Workplace Relations Act 1996 (WR Act).
The ABCC submitted that the court should impose:

a penalty of $9,000 for each employee who engaged in unlawful industrial action: $3,000 to be paid in 28 days, $6,000 suspended for three years;
an additional penalty of $3,000 for each employee who breached the order of the AIRC: $1,000 to be paid within 28 days, $2,000 suspended for three years; and
the suspended penalties would be paid if a respondent contravenes the BCII Act or the WR Act during the three year period.

The employees argued that any penalty imposed should be fully suspended.
A penalty hearing for the four employees who failed to file an appearance or defence took place 14 November 2007.

Hearing for remaining 16 respondents

Proceedings were discontinued against 14 employees. No order as to costs was made.
The ABCC did not serve a further two employees.

Maximum penalties

Background facts

On 5 July 2006, the ABCC filed proceedings in the Federal Court at Perth against 107 employees working on the Perth to Mandurah Railway Project.
The statement of claim alleged that from 24 February 2006 to 3 March 2006 on the section of the railway known as New Metro Rail City Project - Package F:
107 employees contravened section 38 of the BCII Act by taking unlawful industrial action; and
82 of those employees breached an order to the AIRC made pursuant to section 127 of the WR Act. The order directed the CFMEU members employed by the Leighton Kumagai Joint Venture on the Package F not to take industrial action for the remainder of the Project.
The issue that precipitated the strike was the termination of a CFMEU shop steward.
The employees’ union, the CFMEU, was not subject to the proceedings. A CFMEU official addressed the stopwork meetings and advised the employees they were exposed to severe penalties by taking strike action and recommended a return to work. The employees rejected this recommendation on three separate occasions.

Office of the Australian Building and Construction Commissioner